<PAGE> 1
As filed with the Securities and Exchange Commission on May 1, 1998__
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------
AMYLIN PHARMACEUTICALS, INC.
(Exact Name Of Registrant As Specified In Its Charter)
----------------
DELAWARE 33-0266089
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
----------------
9373 TOWNE CENTRE DRIVE
SAN DIEGO, CALIFORNIA 92121
(619) 552-2200
(Address Of Principal Executive Offices)
----------------
EMPLOYEE PHANTOM STOCK SALARY DEFERRAL PLAN
(Full Title Of The Plan)
JOSEPH C. COOK, JR.
CHAIRMAN OF THE BOARD AND CHIEF EXECUTIVE OFFICER
AMYLIN PHARMACEUTICALS, INC.
9373 TOWNE CENTRE DRIVE
SAN DIEGO, CALIFORNIA 92121
(619) 552-2200
(Name, Address, Including Zip Code, And Telephone Number,
Including Area Code, Of Agent For Service)
----------------
COPIES TO:
THOMAS A. COLL, ESQ.
COOLEY GODWARD LLP
4365 EXECUTIVE DRIVE, SUITE 1100
SAN DIEGO, CALIFORNIA 92121
(619) 550-6000
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<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
=====================================================================================================================
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES TO BE AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
REGISTERED (1) REGISTERED SHARE(2) PRICE(2) REGISTRATION FEE
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value $.001 150,000 $4.91 $736,500 $217.27
=====================================================================================================================
</TABLE>
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933,
as amended (the "Securities Act"), this registration statement also
covers an indeterminate amount of interests to be offered or sold
pursuant to the employee benefit plan described herein.
(2) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rules 457(c) and (h)(1). The price per
share and aggregate offering price are based upon the average of the
high and low prices of Registrant's Common Stock on April 28, 1998 as
reported on the Nasdaq National Market.
<PAGE> 3
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by AMYLIN PHARMACEUTICALS, INC. (the
"Company") with the Securities and Exchange Commission are incorporated by
reference into this Registration Statement:
(A) The Company's latest annual report on Form 10-K filed pursuant to
Sections 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), or either (1) the Company's latest prospectus filed pursuant to
Rule 424(b) under the Securities Act, that contains audited financial statements
for the Company's latest fiscal year for which such statements have been filed,
or (2) the Company's effective registration statement on Form 10 or 20-F filed
under the Exchange Act containing audited financial statements for the Company's
latest fiscal year.
(B) All other reports filed pursuant to Sections 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the annual reports, the
prospectus or the registration statement referred to in (a) above.
(C) The description of the Company's Common Stock which is contained in
a registration statement filed under the Exchange Act, including any amendment
or report filed for the purpose of updating such description.
All reports and other documents subsequently filed by the Company
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the
filing of a post-effective amendment which indicates that all securities offered
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference herein and to be a part of this
registration statement from the date of the filing of such reports and
documents.
DESCRIPTION OF SECURITIES
Not applicable.
INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Under Section 145 of the Delaware General Corporation Law, the
Registrant has broad powers to indemnify its Directors and officers against
liabilities they may incur in such capacities, including liabilities under the
Securities Act.
The Registrant's Certificate of Incorporation and By-laws include
provisions to (i) eliminate the personal liability of its directors for monetary
damages resulting from breaches of their fiduciary duty to the extent permitted
by Section 102(b)(7) of the General Corporation Law of Delaware (the "Delaware
Law") and (ii) require the Registrant to indemnify its Directors and officers to
the fullest extent permitted by Section 145 of the Delaware Law, including
circumstances in which indemnification is otherwise discretionary. Pursuant to
Section 145 of the Delaware Law, a corporation generally has the power to
indemnify its present and former directors, officers, employees and agents
against expenses incurred by them in connection with any suit to which they are
or are threatened to be made, a party by reason of their serving in such
positions so long as they acted in good faith and in a manner they reasonably
believed to be in or not opposed to, the best interests of the corporation and
with respect to any criminal action, they had no reasonable cause to believe
their conduct was unlawful. The Registrant believes that these provisions are
necessary to attract and retain qualified persons as Directors and officers.
These provisions do not eliminate the Directors' duty of care, and, in
appropriate circumstances, equitable remedies such as injunctive or other forms
of non-monetary relief will remain available under Delaware Law. In addition,
each Director will continue to be subject to liability for breach of the
Director's duty of loyalty to the Registrant, for acts or omissions not in good
faith or involving intentional misconduct, for knowing violations of law, for
acts or omissions that the Director believes to be contrary to the best
interests of the Registrant or its stockholders, for any transaction from which
the Director derived an improper personal benefit, for acts or omissions
involving a reckless disregard for the Director's duty to the Registrant or its
stockholders when the Director was aware or should have been aware of a risk of
serious injury to the Registrant or its stockholders, for acts or omission that
constitute an unexcused pattern of inattention that amounts to an abdication of
the Director's duty to the Registrant or its stockholders, for improper
transactions between the Director and the Registrant and for
3
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improper distributions to stockholders and loans to Directors and officers. The
provision also does not affect a Director's responsibilities under any other
law, such as the federal securities law or state or federal environmental laws.
The Registrant has entered into indemnity agreements with each of its
Directors and executive officers that require the Registrant to indemnify such
persons against expenses, judgments, fines, settlements and other amounts
incurred (including expenses of a derivative action) in connection with any
proceeding, whether actual or threatened, to which any such person may be made a
party by reason of the fact that such person is or was a Director or an
executive officer of the Registrant or any of its affiliated enterprises,
provided such person acted in good faith and in a manner such person reasonably
believed to be in or not opposed to the best interests of the Registrant and,
with respect to any criminal proceeding, had no reasonable cause to believe his
conduct was unlawful. The indemnification agreements also set forth certain
procedures that will apply in the event of a claim for indemnification
thereunder.
At present, there is no pending litigation or proceeding involving a
Director or officer of the Registrant as to which indemnification is being
sought nor is the Registrant aware of any threatened litigation that may result
in claims for indemnification by any officer or Director.
The Registrant has an insurance policy covering the officers and
Directors of the Registrant with respect to certain liabilities, including
liabilities arising under the Securities Act or otherwise.
EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
EXHIBITS
EXHIBIT
NUMBER
- -------
5.1 Opinion of Cooley Godward LLP.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of Cooley Godward LLP is contained in Exhibit 5.1 to
this Registration Statement.
24 Power of Attorney is contained on the signature pages.
99.1 Employee Phantom Stock Salary Deferral Plan (the "Plan").
99.2 Deferred Compensation Agreement used in connection with the Plan.
4
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UNDERTAKINGS
1. The undersigned registrant hereby undertakes:
(a) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20 percent change in the
maximum aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement.
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
Provided, however, that paragraphs (a)(i) and (a)(ii) do not apply if
the information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference herein.
(b) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
2. The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
3. Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
5
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SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of San Diego, State of California, on May 1, 1998.
AMYLIN PHARMACEUTICALS, INC.
By /s/ JOSEPH C. COOK, JR.
-------------------------------------
Joseph C. Cook, Jr., Chairman of the
Board and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Joseph C. Cook, Jr. and Bradford J. Duft
and each or any one of them, his true and lawful attorney-in-fact and agent,
with full power of substitution and resubstitution, for him and in his name,
place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement, and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
connection therewith, as fully to all intents and purposes as he might or could
do in person, hereby ratifying and confirming all that said attorneys-in-fact
and agents, or any of them, or their or his substitutes or substitute, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------- ----- ----
<S> <C> <C>
/s/ JOSEPH C. COOK, JR. Chairman of the Board and Chief Executive Officer May 1, 1998
- ----------------------------------------- (Principal Financial Officer)
Joseph C. Cook, Jr.
/s/ KARL H. OLSEN Treasurer and Controller (Principal Accounting May 1, 1998
- ----------------------------------------- Officer)
Karl H. Olsen
Director May , 1998
- -----------------------------------------
James C. Blair, Ph.D.
/s/ JAMES C. GAITHER Director May 1, 1998
- -----------------------------------------
James C. Gaither
</TABLE>
(continued on following page)
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(continued from previous page)
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------- ----- ----
<S> <C> <C>
/s/ HOWARD E. GREENE, JR. Director May 1, 1998
- -----------------------------------------
Howard E. Greene, Jr.
/s/ GINGER L. HOWARD Director May 1, 1998
- -----------------------------------------
Ginger L. Howard
/s/ VAUGHN M. KAILIAN Director May 1, 1998
- -----------------------------------------
Vaughn M. Kailian
/s/ TIMOTHY J. WOLLAEGER Director May 1, 1998
- -----------------------------------------
Timothy J. Wollaeger
EMPLOYEE PHANTOM STOCK SALARY DEFERRAL PLAN
By: /s/ JOSEPH C. COOK, JR. May 1, 1998
-------------------------------------
Joseph C. Cook, Jr.
Administrator
</TABLE>
7
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EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
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<S> <C>
5.1 Opinion of Cooley Godward LLP
23.1 Consent of Ernst & Young LLP, Independent Auditors
23.2 Consent of Cooley Godward LLP is contained in Exhibit 5.1
to this Registration Statement
24 Power of Attorney is contained on the signature pages.
99.1 Employee Phantom Stock Salary Deferral Plan
99.2 Deferred Compensation Agreement used in connection with the
Employee Phantom Stock Salary Deferral Plan
</TABLE>
8
<PAGE> 1
EXHIBIT 5.1
May 1, 1998
AMYLIN PHARMACEUTICALS, INC.
9373 Towne Centre Drive
San Diego, CA 92121
Ladies and Gentlemen:
You have requested our opinion with respect to certain matters in connection
with the filing by AMYLIN PHARMACEUTICALS, INC. (the "Company") of a
Registration Statement on Form S-8 (the "Registration Statement") with the
Securities and Exchange Commission, covering the registration of up to 150,000
shares of the Company's Common Stock, $.001 par value (the "Shares"), for
issuance pursuant to the Company's Employee Phantom Stock Salary Deferral Plan
(the "Plan") and an indeterminable number of participating interests in the Plan
(the "Interests").
In connection with this opinion, we have examined and relied upon the
Registration Statement, the Plan, the Company's Certificate of Incorporation and
Bylaws, as amended, and the originals or copies certified to our satisfaction of
such records, documents, certificates, memoranda and other instruments as in our
judgment are necessary or appropriate to enable us to render the opinion
expressed below. We have assumed the genuineness and authenticity of all
documents submitted to us as originals, the conformity to originals of all
documents submitted to us as copies thereof and the due execution and delivery
of all documents where due execution and delivery are a prerequisite to the
effectiveness thereof.
On the basis of the foregoing, and in reliance thereon, we are of the opinion
that the Interests, when issued to Plan participants in accordance with the
terms of the Plan, will be validly issued, and the Shares, when issued and sold
in accordance with the Plan, the Registration Statement and the related
Prospectus, will be validly issued, fully paid and nonassessable.
We consent to the filing of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
Cooley Godward LLP
/s/ THOMAS A. COLL
Thomas A. Coll
<PAGE> 1
EXHIBIT 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the Employee Phantom Stock Salary Deferral Plan of Amylin
Pharmaceuticals, Inc. of our report dated January 23, 1998, except for the last
paragraph of Note 5, as to which the date is March 2, 1998, with respect to the
consolidated financial statements of Amylin Pharmaceuticals, Inc. included in
its Annual Report (Form 10-K) for the year ended December 31, 1997, filed with
the Securities and Exchange Commission.
ERNST & YOUNG LLP
San Diego, California
April 28, 1998
<PAGE> 1
EXHIBIT 99.1
AMYLIN PHARMACEUTICALS, INC.
EMPLOYEE PHANTOM STOCK SALARY DEFERRAL PLAN
EFFECTIVE AS OF MAY 1, 1998
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
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<S> <C> <C>
1. PURPOSE OF THE PLAN................................................................ 1
2. DEFINITIONS........................................................................ 1
2.1 Account................................................................ 1
2.2 Beneficiary............................................................ 1
2.3 Benefit................................................................ 1
2.4 Board.................................................................. 1
2.5 Code................................................................... 1
2.6 Company................................................................ 2
2.7 Compensation........................................................... 2
2.8 Compensation Reductions................................................ 2
2.9 Deferred Compensation Agreement........................................ 2
2.10 Director............................................................... 2
2.11 Effective Date......................................................... 2
2.12 Eligible Employee...................................................... 2
2.13 Executive Officer...................................................... 2
2.14 Fair Market Value...................................................... 2
2.15 Financial Hardship..................................................... 2
2.16 Participant............................................................ 3
2.17 Payment Eligibility Date............................................... 3
2.18 Permanent Disability................................................... 3
2.19 Plan................................................................... 3
2.19 Plan Term.............................................................. 3
2.20 Share.................................................................. 3
2.21 Valuation Date......................................................... 3
2.22 Voluntary Termination.................................................. 3
3. PARTICIPATION...................................................................... 3
3.1 Participation of Eligible Employees.................................... 3
3.2 Irrevocability of Participation During the Plan Term................... 4
3.3 Termination of Participation........................................... 4
4. PLAN ACCOUNTS...................................................................... 4
4.1 Accounts............................................................... 4
4.2 Investment of Accounts................................................ 4
4.3 Value of Accounts...................................................... 4
4.4 Funds Unsecured........................................................ 5
</TABLE>
<PAGE> 3
<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C>
5. WITHDRAWALS DURING EMPLOYMENT & BENEFITS........................................... 5
5.1 Withdrawals During Employment.......................................... 5
5.2 Payment to Participants................................................ 5
5.3 Voluntary Termination of Employment.................................... 5
5.4 Death Benefits......................................................... 6
6. SOURCE OF BENEFITS................................................................. 6
7. ADMINISTRATION..................................................................... 6
7.1 General................................................................ 6
7.2 Procedures............................................................. 6
7.3 Claims................................................................. 6
8. AMENDMENT AND TERMINATION.......................................................... 7
8.1 Amendment or Termination............................................... 7
8.2 Accrued Benefits....................................................... 7
9. SALE OR MERGER OF THE COMPANY...................................................... 7
10. MISCELLANEOUS...................................................................... 8
10.1 No Right to Continue as an Employee.................................... 8
10.2 Successors and Assigns................................................. 8
10.3 Assignment or Alienation............................................... 8
10.4 Entire Agreement....................................................... 8
10.5 Headings............................................................... 8
10.6 Gender and Number...................................................... 8
10.7 Governing Law.......................................................... 9
</TABLE>
<PAGE> 4
AMYLIN PHARMACEUTICALS, INC.
EMPLOYEE PHANTOM STOCK SALARY DEFERRAL PLAN
Effective as of May 1, 1998
AMYLIN PHARMACEUTICALS, INC., a Delaware corporation, hereby adopts the
Amylin Pharmaceuticals, Inc. Employee Phantom Stock Salary Deferral Plan for the
employees of the Company upon the terms and conditions set forth below.
It is intended that the Plan shall constitute an unfunded deferred
compensation arrangement for purposes of United States federal income tax laws,
and all documents, agreements or instruments made or given pursuant to the Plan
shall be interpreted so as to carry out this intent. As such, the benefits
payable under the Plan are and at all times will be considered unsecured
contractual rights against the Company payable from the Company's general
assets.
1. PURPOSE OF THE PLAN
The purpose of this Plan is to provide deferred compensation benefits to
employees of the Company, payable by the Company. This Plan will provide
benefits derived from the short-term deferral of a portion of an employee's
Compensation in accordance with the terms hereof, the payment of which he or she
has elected to defer under the Plan.
2. DEFINITIONS
The capitalized terms defined in this Section 2 shall have the meanings
set forth below.
2.1 ACCOUNT. A separate Plan account, which is a bookkeeping record,
established for each Participant to which shall be allocated Compensation
Reductions in accordance with Section 4.1 and Shares, and dividends with respect
to Shares, in accordance with Section 4.2.
2.2 BENEFICIARY. The beneficiary or beneficiaries designated by a
Participant to receive any remaining Benefits due under the Plan after his or
her death. If the Participant has not designated a Beneficiary, the Beneficiary
shall be the Participant's surviving spouse or, if none, the Participant's
estate.
2.3 BENEFIT. The benefit or benefits provided under this Plan, which
shall be equal to the account balance of such Participant's Account.
2.4 BOARD. The Board of Directors of the Company.
2.5 CODE. The Internal Revenue Code of 1986, as it may be amended from
time to time.
1.
<PAGE> 5
2.6 COMPANY. Amylin Pharmaceuticals, Inc., a Delaware corporation,
including its affiliated companies, or any successor corporation.
2.7 COMPENSATION. All the compensation (paid in cash or by check)
received by a Participant from the Company during the Plan Term for his or her
employment by the Company. Compensation shall include a Participant's base
salary, overtime pay, bonuses, commissions and other remuneration paid directly
to the Participant, but excluding profit sharing, the cost of employee benefits
paid for by the Company, education or tuition reimbursements, imputed income
arising under any Company group insurance or benefit program, traveling
expenses, business and moving expense reimbursements, fringe benefits (cash and
non-cash), housing allowances, income received in connection with stock options,
contributions made by the Company under any employee benefit plan, welfare
benefits and similar items of compensation.
2.8 COMPENSATION REDUCTIONS. The amount of Compensation which a
Participant has elected to defer pursuant to a Deferred Compensation Agreement,
and which the Company and the Participant mutually agree shall be deferred in
accordance with the Plan.
2.9 DEFERRED COMPENSATION AGREEMENT. An agreement by which a Participant
elects to reduce his or her Compensation during the Plan Term.
2.10 DIRECTOR. A member of the Board.
2.11 EFFECTIVE DATE. May 1, 1998.
2.12 ELIGIBLE EMPLOYEE. An employee of the Company having a grade level
designation of 15 or higher under the Company's compensation administration
policies and any employee of the Company based outside the United States.
2.13 EXECUTIVE OFFICER. An "executive officer" of the Company for
purposes of Section 16 of the Securities Exchange Act of 1934, as amended.
2.14 FAIR MARKET VALUE. The fair market value of a share of Common Stock
of the Company is the closing sales price for such stock as quoted on a national
securities exchange or the National Market System of the National Association of
Securities Dealers, Inc. Automated Quotation System on the day of determination,
as reported in The Wall Street Journal or such other source as the Company deems
reliable.
2.15 FINANCIAL HARDSHIP. An unforeseeable financial emergency which a
Participant cannot meet through loans, insurance or liquidation of the
Participant's assets (to the extent such liquidation would not itself cause a
financial hardship), credit arrangements or cessation of deferrals by the
Participant under the Plan. An unforeseeable financial emergency is a severe
financial hardship to Participant resulting from a sudden and unexpected illness
of the Participant or of a dependent of the Participant (as defined in Section
152(a) of the Code), from a loss of Participant's property due to casualty, or
other similar extraordinary and
2.
<PAGE> 6
unforeseeable circumstances arising as a result of events beyond the
Participant's control. Examples of what are not considered to be unforeseeable
financial emergencies include the need to send the Participant's child to
college or the desire to purchase a residence.
2.16 PARTICIPANT. Any Eligible Employee who has elected to participate
in the Plan by entering into a Deferred Compensation Agreement.
2.17 PAYMENT ELIGIBILITY DATE. The first day of the month following the
end of the calendar month in which a Participant's service with the Company
terminates (except in the case of a Voluntary Termination of employment with the
Company by the Participant for a reason other than the Participant's death or
Permanent Disability) or May 31, 1999, whichever is earlier. The Administrator,
in his sole discretion, may determine whether a Participant's service with the
Company has terminated in the case of any leave of absence approved by the
Compensation Committee of the Board, including sick leave, military leave, or
any other personal leave; provided that any such leave shall not exceed ninety
(90) days.
2.18 PERMANENT DISABILITY. An employees permanent and total disability
(within the meaning of Section 422(c)(6) of the Code).
2.19 PLAN. The Amylin Pharmaceuticals, Inc. Employee Phantom Stock
Salary Deferral Plan, as amended from time to time.
2.20 PLAN TERM. The thirteen (13) consecutive-month period beginning on
May 1, 1998, and ending on May 31, 1999.
2.21 SHARE. A participating interest under the Plan, which shall be
equal to the Fair Market Value of a share of Common Stock of the Company.
2.22 VALUATION DATE. The day on which earnings shall be allocated to
Participants' Accounts, which shall occur not less frequently than as of the
last day of the Plan Term or such other date as shall be determined at the sole
discretion of the Plan Administrator.
2.23 VOLUNTARY TERMINATION. An employee's voluntary termination of
employment with the Company for a reason other than the Participant's Permanent
Disability.
3. PARTICIPATION
3.1 PARTICIPATION OF ELIGIBLE EMPLOYEES.
(a) Each Eligible Employee may begin to participate in the Plan on
the Effective Date; provided, however, that such Eligible Employee completes and
signs a Deferred Compensation Agreement and returns such Deferred Compensation
Agreement to the designated representative of the Company prior to the Effective
Date or such earlier date established by the Company and announced to the
Eligible Employee. Such Deferred Compensation Agreement shall be effective for
the period beginning on the Effective Date and ending on the last day of the
Plan Term.
3.
<PAGE> 7
(b) Each individual who becomes an Eligible Employee after the Effective
Date may begin to participate in the Plan by completing and signing a Deferred
Compensation Agreement and returning such Deferred Compensation Agreement to the
designated representative of the Company; provided, however, that such
completion and return of the Deferred Compensation Agreement to the Company
occurs within thirty (30) days after the date that the individual becomes an
Eligible Employee. Such Deferred Compensation Agreement shall be effective for
the period beginning with the first payroll period following the date the
Eligible Employee completes and returns the Deferred Compensation Agreement to
the Company and ending on the last day of the Plan Term.
3.2 IRREVOCABILITY OF PARTICIPATION DURING THE PLAN TERM. A Participant
may not terminate his or her Deferred Compensation Agreement with respect to the
Plan Term on or after the Effective Date.
3.3 TERMINATION OF PARTICIPATION. A Participant shall cease to be a
Participant as of the date he or she ceases serving as an employee of the
Company.
4. PLAN ACCOUNTS
4.1 ACCOUNTS. The Company shall maintain or cause to be maintained for
each Participant an Account with respect to which the Company shall allocate
amounts equal to the Participant's Compensation Reductions during the Plan Term,
effective as of the date such Compensation Reductions would have been paid to
the Participant as Compensation in the absence of a Deferred Compensation
Agreement.
4.2 INVESTMENT OF ACCOUNTS.
(a) Each Compensation Reduction allocated to a Participant's Account
shall be converted into that number of Shares that equal the amount of such
Compensation Reduction divided by the Fair Market Value of the Common Stock of
the Company as of May 1, 1998. The calculation of the number of Shares need not
be rounded to the nearest whole Share, so that a fraction of a Share (calculated
to the nearest one-hundredth of a Share) may be allocated to a Participant's
Account.
(b) In the event any dividends or distributions are made with
respect to the Common Stock of the Company, the Company shall allocate an amount
to the Participant's Account that is equal to the amount of such dividends or
distributions that would have been made with respect to the Shares allocated to
a Participant's Account if they were shares of the Common Stock of the Company
outstanding as of the record date of any such dividend or distribution. Such
dividend/distribution allocations shall be converted into that number of whole
and/or fractional Shares that equal the amount of such allocation divided by the
Fair Market Value of the Common Stock of the Company as of the record date of
such dividends or distributions.
4.3 VALUE OF ACCOUNTS. Except as otherwise provided in Section 5.1,
below, the value of a Participant's Account as of any Valuation Date shall be
equal to the number of
4.
<PAGE> 8
Shares allocated to a Participant's Account multiplied by the Fair Market Value
of one share of the Common Stock of the Company as of the Valuation Date.
4.4 FUNDS UNSECURED. Notwithstanding any other provisions of this Plan,
all Benefits payable under the Plan are subject to the claims of the general
creditors of the Company. No trust shall be established to hold any assets which
may be set aside by the Company to pay the Benefits under the Plan, and the
Company shall be under no obligation to set aside any amounts to pay Benefits.
The maintenance of separate Accounts by the Company as provided herein shall
neither require nor be considered a segregation of any funds or property from
the Company's general assets. Participants shall have no preferred claim on or
beneficial ownership interest in any assets of the Company prior to the time
actual payments of Benefits are received, and all rights of the Participants to
Benefits are mere unsecured contractual rights against the Company.
5. WITHDRAWALS DURING EMPLOYMENT & BENEFITS
5.1 WITHDRAWALS DURING EMPLOYMENT. A Participant may request a
withdrawal from his or her Account from the Plan Administrator, which request
may be granted or denied by the Administrator in the Administrator's sole and
absolute discretion. In the event a withdrawal by a Participant during his or
her employment is approved by the Plan Administrator, the value of a
Participant's Account as of any Valuation Date shall be equal to ninety percent
(90%) of a Participant's Compensation Reductions immediately prior to such
Valuation Date (without interest); provided, that to the extent the withdrawal
is due to the Financial Hardship of the Participant, then the value of a
Participant's Account as of any Valuation Date shall be equal to the entire
amount of a Participant's Compensation Reductions immediately prior to such
Valuation Date (without interest). All withdrawals during employment shall be
made solely in the form of a single lump sum distribution.
5.2 PAYMENT TO PARTICIPANTS. Within forty-five (45) days following the
Participant's Payment Eligibility Date or as otherwise provided in Section 5.1,
above, or Section 9, below, the Participant shall be entitled to receive the
value of his or her Account determined as of the Valuation Date coinciding with
or immediately preceding the date of the distribution, which shall be paid out
by the Company in the form of cash (or check) and/or in the form of the
Company's Common Stock valued as of the Valuation Date, in a single lump sum
payment, the form of which shall be in the Company's sole and absolute
discretion. Notwithstanding the foregoing, the aggregate number of shares of the
Company's Common Stock distributable to the Executive Officers of the Company
under this Plan shall not exceed twenty percent (20%) of the total number of
such shares distributed to all Participants under this Plan or such other then
applicable limitation so as to cause the Plan to be deemed a "broadly based"
plan as set forth in Rule 4460(i)(1)(A) of the National Association of
Securities Dealers, Inc.
5.3 VOLUNTARY TERMINATION OF EMPLOYMENT. In the event of a Voluntary
Termination by a Participant prior to such Participant's Payment Eligibility
Date, such Participant's Account shall then have no value and at no time
thereafter shall such Participant
5.
<PAGE> 9
have any right to receive any amounts from the Company, in any form, based on
his or her Compensation Reductions immediately prior to the date of his or her
Voluntary Termination.
5.4 DEATH AND DISABILITY BENEFITS. In the event that a Participant dies
or becomes Permanently Disabled prior to receiving all of his or her Benefits,
his or her remaining Benefits shall be paid by the Company in the form of cash
(or check) and/or in the form of the Company's Common Stock valued as of the
Valuation Date, as determined by the Company in its sole discretion, to the
Participant or the Participant's Beneficiary, as the case may be, in a lump sum
payment as soon as administratively feasible after the Participant's death or
Permanent Disability.
6. SOURCE OF BENEFITS
Benefits payable under this Plan shall be paid out of the Company's
general assets and allocated as payments from the appropriate Participant's
Account under the Plan.
7. ADMINISTRATION
7.1 GENERAL. This Plan shall be administered by the Chief Executive
Officer of the Company (the "Administrator"). Such Administrator shall exercise
all administrative powers and duties under the Plan in accordance with the terms
and purposes of the Plan. The Administrator shall determine the amount of the
Benefits due to each Participant or Beneficiary from the Plan and shall cause
them to be paid in accordance with the Plan.
7.2 PROCEDURES. The Administrator may adopt such rules and regulations
not inconsistent with the provisions of the Plan as deemed necessary or
appropriate for the proper administration of the Plan and shall have the
authority, in the Administrator's sole discretion, to interpret and construe any
provision of the Plan. To the extent permitted by law, (i) all such rules,
regulations, interpretations and constructions shall be final and binding on the
Company and all Participants and their legal representatives, beneficiaries,
successors, and assigns, subject to review as provided in Section 7.3, (ii) the
Administrator shall not be subject to any individual liability with respect to
the Plan and (iii) the Administrator shall be indemnified by the Company for any
action or omission made with respect to the Plan which does not demonstrate bad
faith, willful misconduct, criminal act, or gross negligence.
7.3 CLAIMS. Any denial by the Administrator of a claim for benefits
under the Plan by a Participant or Beneficiary shall be stated in writing by the
Administrator and delivered or mailed to the Participant or Beneficiary. Such
notice shall set forth the specific reasons for the denial, written to the best
of the Administrator's ability in a manner that may be understood without legal
counsel. In addition, the Administrator shall afford a reasonable opportunity to
any Participant or Beneficiary whose claim for benefits has been denied for a
review of the decision denying the claim. In the event of further disagreement
following any further decision of the Administrator after such a review, either
the Participant or the Administrator may appeal to the Compensation Committee of
the Board, whose decision shall be final and binding on all parties.
6.
<PAGE> 10
8. AMENDMENT AND TERMINATION
8.1 AMENDMENT OR TERMINATION.
(a) The Company shall have the absolute right to amend the Plan in
any respect to the extent necessary to obtain favorable rulings from the
Internal Revenue Service as to the status of the Plan as an unfunded deferred
compensation arrangement for United States federal income tax purposes, provided
that an application seeking such rulings is submitted to the Internal Revenue
Service within one year after the Effective Date. If such rulings are sought
within one year after the Effective Date but not obtained ultimately, the
Company may elect to terminate the Plan within thirty (30) days after it becomes
apparent that favorable rulings will not be obtained. In this event, the Company
shall notify all Participants of its election to terminate the Plan, and
Participants shall be entitled to receive the Compensation Reductions in their
respective Accounts, if any.
(b) While the Company intends and expects the Plan to continue to
fulfill its purposes and serve the best interests of the Company in its present
form, the Company reserves the right to amend or terminate the Plan at any time,
subject, except where Section 8.1(a) applies, to the provisions of Section 8.2
and Section 9.
8.2 ACCRUED BENEFITS.
(a) Except where Section 8.1(a) applies, no termination of the Plan
or any amendments thereto which affect Benefits under the Plan shall, without
the written consent of a Participant, eliminate or reduce any Benefit of the
Participant under the Plan to which, as of the date of such termination or
amendment, such Participant would be entitled under the provisions of Section 5
had he or she ceased serving as an Eligible Employee, except as a result of a
Voluntary Termination, immediately prior to such date.
(b) In the event of any amendment of the Plan which affects the
amount of Benefits payable under the Plan, Participants shall be entitled to
receive the greater of (i) the Benefit provided under the Plan as amended, or
(ii) the Benefit described above in Section 8.2(a).
(c) Upon termination of the Plan, all Deferred Compensation
Agreements shall terminate immediately and all Participants' full Compensation
level on a non-deferred basis will be restored. Each and every Participant shall
receive payment of the value of his or her Account in accordance with the
provisions of Section 5 as if the Participants had terminated his or her
employment with the Company on the date of the Plan's termination.
(d) The Plan shall automatically terminate on the last day of the
Plan Term.
9. SALE OR MERGER OF THE COMPANY
In the event of a sale of all or substantially all assets, merger,
reorganization, consolidation or other similar transaction (a "Change of
Ownership Transaction") involving the
7.
<PAGE> 11
Company, no Participant in the Plan will be considered to have ceased serving as
an Eligible Employee for purposes of the Plan, nor will any such Participant be
entitled to receive Benefits pursuant to Section 5, until such Participant
actually ceases serving as an Eligible Employee of the Company or any acquiring
or successor company or entity, and otherwise ceases to provide services to the
Company unless payment of Benefits is otherwise directed by the Administrator of
the Plan. Notwithstanding the foregoing sentence, in the event of the occurrence
of a "Change in Control" (defined below) of the Company, a Participant shall be
entitled to receive Benefits pursuant to Section 5 immediately prior to the
effective date of such Change in Control. For purposes of the foregoing
sentence, "Change in Control" is defined as any of the following: (i) any
merger, acquisition, consolidation, reorganization or other similar transaction
pursuant to which the shareholders of the Company immediately prior to such
merger, consolidation, reorganization or other similar transaction do not,
immediately thereafter, own more than 50% of the outstanding voting securities
of the resulting entity, or (ii) any liquidation or dissolution of the Company
or any sale of all or substantially all of the assets of the Company. In any
event, no Change of Ownership Transaction involving the Company or Change in
Control of the Company shall, without the written consent of a Participant,
eliminate or reduce any Benefit of the Participant under the Plan to which, as
of the date of such Change of Ownership Transaction or Change in Control, such
Participant would be entitled under the provisions of Section 5 had he or she
involuntarily ceased serving as an Eligible Employee immediately prior to such
date.
10. MISCELLANEOUS
10.1 NO RIGHT TO CONTINUE AS AN EMPLOYEE. Nothing contained in this Plan
or in any agreement or instrument executed pursuant to the Plan shall be
construed as conferring upon any Participant the right to continue serving as an
employee.
10.2 SUCCESSORS AND ASSIGNS. This Plan shall be binding upon the Company
and its successors and assigns as well as each Participant and his or her
representatives, successors, heirs, assigns, and Beneficiary.
10.3 ASSIGNMENT OR ALIENATION. To the extent permitted by law, benefits
of Participants under this Plan may not be anticipated, assigned (either by law
or in equity), transferred, alienated or subject to attachment, garnishment,
levy, execution or other legal or equitable process.
10.4 ENTIRE AGREEMENT. The Plan and a Participant's Deferred
Compensation Agreement, and any subsequently adopted amendment to either of
these documents, shall constitute the total agreement or contract between the
Company and such Participant regarding the Plan. No oral statement regarding the
Plan may be relied upon by the Participant. If there are any conflicts between
the terms of the Plan and a Participant's Deferred Compensation Agreement, the
terms of the Plan shall control.
10.5 HEADINGS. The headings herein are for reference only. In the event
of a conflict between a heading and content of a Section of this Plan, the
content of the Section shall control.
8.
<PAGE> 12
10.6 GENDER AND NUMBER. Whenever used herein, the masculine shall be
interpreted to include the feminine and neuter, the neuter to include the
masculine and feminine, the singular to include the plural and the plural to
include the singular, unless the context requires otherwise.
10.7 GOVERNING LAW. The place of administration of this Plan shall
conclusively be deemed to be within the State of California, and the Plan shall
be governed by and in all respects construed in accordance with the substantive
laws of the State of California, except where such laws are superseded by
federal laws.
IN WITNESS WHEREOF, the Company has executed this Plan this 24th day of
April, 1998.
AMYLIN PHARMACEUTICALS, INC.
Joseph C. Cook, Jr.
--------------------------------------
Chairman and Chief Executive Officer
9
<PAGE> 1
DEFERRED COMPENSATION AGREEMENT UNDER
THE AMYLIN PHARMACEUTICALS, INC.
EMPLOYEE PHANTOM STOCK SALARY DEFERRAL PLAN
THIS AGREEMENT is entered into by AMYLIN PHARMACEUTICALS, INC., a
Delaware corporation (the "Company"), and ____________________________________
(the "Participant") to be effective for the period beginning as of May 1, 1998
and ending as of the next following May 31, 1999.
WHEREAS, the Company has established the Amylin Pharmaceuticals, Inc.
Employee Phantom Stock Salary Deferral Plan (the "Plan") to provide benefits
payable by the Company to employees of the Company, which benefits to
Participants under the Plan are based on compensation the payment of which the
Participant has elected to defer payment until May 31, 1999 or the time that he
or she is no longer an employee of the Company, whichever is earlier, and
subject to all other terms and conditions of the Plan;
WHEREAS, the undersigned Participant has received a complete copy of the
Plan and acknowledges his understanding of the terms and conditions of the Plan;
WHEREAS, the undersigned Participant has had an opportunity to ask
questions of the officers of the Company concerning terms and conditions of the
Plan;
WHEREAS, pursuant to Section 3 of the Plan, the Participant is eligible
to participate in the Plan;
WHEREAS, under the Plan the Participant must enter into an agreement in
order to defer his or her receipt of a portion of his or her Compensation during
the Plan Term; and
WHEREAS, under the Plan the Participant must enter into such agreement
either (i) prior to the Effective Date of the Plan, or (ii) within 30 days of
the Participant becoming an Eligible Employee, whichever is applicable.
NOW, THEREFORE, in consideration of the terms and conditions set forth
herein, the Company and the Participant agree as follows:
1. All of the various terms and conditions of the Plan, including any
amendments made to the Plan from time to time, shall be incorporated into and be
considered a part of this Agreement and shall be binding upon the parties.
Capitalized terms used, but not defined, in this Agreement shall have the
meaning set forth in the Plan.
2. This Agreement shall be binding upon the parties, any successor to
the Company, any representative, successor, assign or heir of the Participant,
and any surviving spouse or Beneficiary of the Participant. In accordance with
the terms of the Plan, no interest under this
1.
<PAGE> 2
Agreement may be assigned, alienated or disposed of in any manner by the
Participant or any surviving spouse, representative, successor, assign, heir, or
Beneficiary of the Participant.
3. This Agreement is intended to be a Deferred Compensation Agreement as
defined in the Plan.
4. Subject to the provisions of Section 5 of this Agreement, the
Participant agrees to irrevocably defer receipt of _____% (minimum of 1.0%,
maximum of 25%) of his or her Compensation from May 1, 1998 to May 15, 1999 in
order to have such amounts credited by the Company to his or her Account under
the Plan as Compensation Reductions. The Company agrees to reduce the
Participant's Compensation as such and to credit such amounts to the
Participant's Account established under the terms of the Plan.
5. This Agreement shall apply only to Compensation payable with respect
to the Participant's services rendered as an Employee on or after the date the
Participant signs and returns this Agreement to the Company.
6. This Agreement may not be revoked at any time. This Agreement may be
amended by the Company and the Participant in writing; provided, however, that
no amendment may be made which would alter the terms of the Participant's
election to defer Compensation in force at the time of such amendment.
7. The benefits to which the Participant is entitled under this
Agreement are based on the value of the Participant's Account under the Plan.
The amounts deferred under this Agreement and credited to the Participant's
Account under the Plan shall be valued in accordance with the terms of the Plan.
8. The Participant understands and hereby acknowledges that amounts
credited under the Plan will not be available until the Participant's Payment
Eligibility Date. The Participant further understands and hereby acknowledges
that in the event of his Voluntary Termination of employment with the Company
prior to the Payment Eligibility Date, his Account shall then have no value and
at no time thereafter shall such Participant have any right to receive any
amounts from the Company, in any form, based on his or her Compensation
Reductions immediately prior to the date of his or her Voluntary Termination.
9. The Participant shall have the right to designate below a Beneficiary
to receive any Benefits due under the Plan which may remain unpaid at the
Participant's death and shall have the right at any time to revoke such
designation and to substitute another such Beneficiary. In the event of the
Participant's death prior to receiving the value of his or her Account, the
entire value of the Participant's Account shall be paid to the Participant's
Beneficiary (or if the Participant has not designated a Beneficiary, to the
Participant's surviving spouse, or if none, to the Participant's estate) in a
single lump sum payment.
2.
<PAGE> 3
10. The distribution to the Participant of some or all of the value of
the Participant's Account under the Plan shall discharge the Company of all
obligations to the Participant under this Agreement to the extent of the amount
of such distribution.
11. The Participant understands that all payments under this Agreement
shall be subject to all applicable withholding for foreign, state, federal and
local income or employment taxes.
12. The Participant understands that except as otherwise provided by the
Plan, the entire value of the Participant's Account under the Plan shall be
subject to the claims of creditors of the Company and neither the Participant
nor any Beneficiary shall have any legal or equitable interest in any of the
Plan's assets, or any other asset of the Company. The Participant is a general
unsecured creditor of the Company with respect to the promises of the Company
made herein, except as otherwise expressly provided by the Plan.
13. Nothing contained in this Agreement or the Plan shall be construed
as conferring upon the Participant the right to continue serving as an employee
of the Company.
14. This Agreement constitutes the entire understanding and agreement
between the Company and the Participant with respect to the subject matter
contained herein, and there are no agreements, understandings, restrictions,
representations or warranties among the Participant and the Company other than
those as set forth or provided for in this Agreement and the Plan. The terms of
this Agreement and the Plan shall control and take precedence over the terms of
any other materials which describe the Plan and this Agreement and which might
be argued to be inconsistent with the terms of the Plan or this Agreement.
15. This Agreement shall be governed by the substantive laws of the
State of California.
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed
by a duly authorized representative and Participant has executed this Agreement
effective as of the first day of the period described above.
AMYLIN PHARMACEUTICALS, INC.:
Dated: April 30, 1998 By:
---------------- ------------------------------------
Joseph C. Cook, Jr.
Chairman and Chief Executive Officer
PARTICIPANT:
Dated:
---------------- ----------------------------------------
(signature)
----------------------------------------
(printed name)
3.
<PAGE> 4
BENEFICIARY DESIGNATION FORM
AMYLIN PHARMACEUTICALS, INC.
EMPLOYEE PHANTOM STOCK SALARY DEFERRAL PLAN
================================================================================
PARTICIPANT'S DESIGNATION
I, the undersigned Participant under the Amylin Pharmaceuticals, Inc. Employee
Phantom Stock Salary Deferral Plan (the "Plan"), hereby designate the following
primary beneficiary(ies) to receive benefits accrued to me under the Plan in the
event of my death:
- ---------------------------- ---------------------- --------------------
Name of Beneficiary Relationship % of Benefits
- ---------------------------- ---------------------- --------------------
Name of Beneficiary Relationship % of Benefits
NOTE: If you are married and you have not designated your spouse as your sole
primary beneficiary, your designation will not be valid unless this form is
signed by your spouse and witnessed by a notary public or a Plan representative.
If this form is not signed and witnessed, your spouse is automatically the sole
primary beneficiary.
================================================================================
SPOUSE'S CONSENT
I consent to the beneficiary designation of this form. I understand that, in the
event of my spouse's death, all benefits under the Plan will be payable to those
designated above. My consent is irrevocable unless my spouse revokes the
beneficiary designation above.
- -------------------------------------------------- ------------------------
Signature of Spouse Date
- -------------------------------------------------- ------------------------
Witnessed by Notary Public or Plan Representative Date
================================================================================
PARTICIPANT'S SIGNATURE
The above elections are to remain in effect until changed by my written
election. I certify that all information is complete and accurate to the best of
my knowledge.
- -------------------------------------------------- ------------------------
Signature of Participant Date
4.
